Nowak v. Tak How Inv. Ltd.

• Decision Date: 29 August 1995
• Docket Number: Civ. A. No. 94-11691-WGY.
• Citation: 899 F. Supp. 25
• Parties: Ralph M. NOWAK, Administrator of the Estate of Sally Ann Nowak, and Individually; Nicholas M. Nowak, a minor, by Ralph M. Nowak, his father and next friend; and Nathan G. Nowak, a minor, by Ralph M. Nowak, his father and next friend, Plaintiffs, v. TAK HOW INVESTMENT LTD. d/b/a Holiday Inn Crowne Plaza Harbour View, Defendant.
• Court: U.S. District Court — District of Massachusetts

899 F. Supp. 25

Ralph M. NOWAK, Administrator of the Estate of Sally Ann Nowak, and Individually; Nicholas M. Nowak, a minor, by Ralph M. Nowak, his father and next friend; and Nathan G. Nowak, a minor, by Ralph M. Nowak, his father and next friend, Plaintiffs, v. TAK HOW INVESTMENT LTD. d/b/a Holiday Inn Crowne Plaza Harbour View, Defendant.

Civ. A. No. 94-11691-WGY.

United States District Court, D. Massachusetts.

August 29, 1995.

Edward Fegreus, Boston, MA, for plaintiffs.

Alan B. Rubenstein, Rackemann, Sawyer & Brewster, Boston, MA, for defendant.

MEMORANDUM AND ORDER

YOUNG, District Judge.

This wrongful death diversity action tests the limits of the power of this Court to exercise in personam jurisdiction over an out-of-state defendant. It involves a resident of Massachusetts who accompanied her husband on a business trip to Hong Kong and drowned in the swimming pool of the hotel at which they lodged, allegedly due to the negligence of the hotel and its staff. Her widower and two children, also residents of the Commonwealth, now seek to hold the owner of the hotel accountable in Massachusetts. To do so, as is frequently the case in like situations, they must overcome the hotel's motion to dismiss for lack of personal jurisdiction and demonstrate the defendant's amenability to suit in this forum. See Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st Cir.1995) (plaintiff bears burden of proving existence of jurisdiction).

I. Background

Questions of personal jurisdiction require detailed examination of the particular circumstances of each case. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 485-86, 105 S.Ct. 2174, 2189-90, 85 L.Ed.2d 528 (1985); Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1959, 131 L.Ed.2d 851 (1995). Therefore, the largely undisputed facts of jurisdictional significance must here be set forth at some length. In deciding the instant motion, the Court employs the prima facie standard, considering "only whether the plaintiff has proffered evidence that, if credited, is enough to support findings of all facts essential to personal jurisdiction." Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 675 (1st Cir.1992); see also Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st Cir. 1995). The plaintiff may not rely on unsupported allegations in the pleadings, but the Court must accept all of the plaintiff's "properly supported proffers" of evidence as true. Boit, 967 F.2d at 675.

With that standard in mind, the Court bases its decision herein on the following facts:

Sally Ann Nowak ("Mrs. Nowak") was at all relevant times married to the plaintiff Ralph M. Nowak ("Mr. Nowak") and was the mother of their two minor children, the plaintiffs Nicholas M. and Nathan G. Nowak (collectively, the plaintiffs will be referred to as "the Nowaks"). The Nowaks lived in Marblehead, Massachusetts, and Mr. Nowak was employed as a Preliminary Design Manager in the Marketing Department of Kiddie Products, Inc. ("Kiddie") in Avon, Massachusetts. Kiddie develops, manufactures, and markets products for infants. As Kiddie engages in extensive business in Hong Kong, its executives frequently travel on business to the Crown colony. Mr. Nowak customarily made two such business trips each year, and was usually accompanied on one of those trips by Mrs. Nowak. Another Kiddie employee, Marie Burke ("Burke"), Administrative Assistant to the Vice President of Materials Management/Engineering, John N. Colantuone ("Colantuone"), was responsible for scheduling and reserving airline flights, hotel accommodations, and ground transportation for Mr. Nowak and other executives of the company on their trips to Hong Kong.

Kiddie's relationship with the Holiday Inn Crowne Plaza Harbour View (the "Hotel")¹ was initiated by Colantuone, who had been travelling to Hong Kong on Kiddie's behalf since 1982. Prior to 1992, Colantuone stayed at numerous other hotels while in Hong Kong two or three times a year, and first became aware of the Hotel through advertisements on Hong Kong radio sometime around 1983 or 1984. Colantuone later became dissatisfied with the rates and business services provided by the hotels he had been patronizing, conducted research on other possible candidates, and finally decided to try the Hotel in 1992.

Since that time, according to Burke, department employees travelling to Hong Kong have stayed exclusively at the Hotel because the company receives special corporate discount room rates and other benefits, such as complimentary conference rooms and the use of business facilities. Burke has reserved rooms at the Hotel for at least twenty Kiddie employees.

The trip resulting in Mrs. Nowak's death came about as follows. On June 28, 1993, Lana Yip ("Yip"), the Hotel's Commercial Sales Manager, solicited further business from the company by sending Colantuone a message by telecopier:

It has been our pleasure serving you and your travelling executives at Holiday Inn Crowne Plaza Harbour View. May I take this opportunity to introduce our latest promotion program to you, which valid (sic) from now until 30 September 1993.... Thank you for your continuous support to our hotel and we look forward to welcoming you back soon.

Attached to the fax were two pages of promotional materials. One, entitled "Crowne Plaza Business Specials," promised a 35% discount "only for corporate discount holders," and listed the special rates available to Kiddie for each of the types of rooms available. The second page listed all the benefits of staying on one of the Hotel's "Executive Floors."

Colantuone's assistant, Burke, responded to Yip's solicitation approximately two weeks later, expressing interest and requesting further information on rooms and rates. Yip promptly replied, and a series of faxes ensued in which Yip furnished Burke with extensive information and Burke eventually reserved rooms at the Hotel for Mr. and Mrs. Nowak; Colantuone and his wife; and three other Kiddie employees. From June 28 to August 25, 1993, Burke and Yip exchanged a total of sixteen messages—each party generating eight. Most of the telecopier traffic concerned changes to the reservations—primarily regarding the size and makeup of the Kiddie contingent and the accommodations desired—initiated by Burke. The final plan called for the Nowaks and the Colantuones to arrive at the Hotel on September 16, 1993.

The Nowaks allege the following in their complaint.² On September 18, 1993, Mr. and Mrs. Nowak were registered guests of the Hotel. At approximately 1:15 p.m., Mrs. Nowak was swimming alone in the Hotel pool. On duty as lifeguards were two employees of the Hotel, Ho-Piu Leung ("Ho") and PingChee Tse ("Ping"). The Hotel had assigned Tse to watch the swimmers from poolside, while it was Ho's responsibility to monitor activity in the pool through a glass wall in the Hotel gymnasium. Ping left his post to go to the storeroom while Mrs. Nowak was "splashing and doing warm up exercises," and when he returned two to three minutes later, he saw Mrs. Nowak at the bottom of the pool. Ping called for Ho's assistance and then dove into the pool in an attempt to rescue Mrs. Nowak. Ping and Ho together pulled her from the pool, and they both observed that although she was not breathing, Mrs. Nowak had a pulse and her eyes were moving. They also noticed that she had vomited and had a small abrasion on the left side of her mouth.

Ping and Ho refused to administer "mouth-to-mouth" cardiopulmonary resuscitation because they were fearful of contracting an infectious disease and did not have a "mouth-to-mouth face guard," a cheap, portable device customarily carried and used by lifeguards and health care workers. Instead, the lifeguards attempted to revive Mrs. Nowak by using the "sylvester" method of resuscitation, an indirect form of ventilation involving manipulation of Mrs. Nowak's arms. This method is known to lifeguards as ineffective and inefficient, and in this case, with tragic results, it proved to be so. The Nowaks now seek to recover damages from the owner of the Hotel, alleging that its negligence caused Mrs. Nowak's death.

II. Discussion

A determination of jurisdiction requires a tripartite analysis. See Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 144 (1st Cir.1995); Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir.1994). Jurisdiction is proper only where 1) the claim directly arises out of or relates to the defendant's activities in the forum ("relatedness"); 2) the defendant has "purposefully availed" itself of the privilege of conducting business here; and 3) its assertion is reasonable in light of certain "Gestalt" factors, see section II(C), infra. Foster-Miller, 46 F.3d at 144. The Court will address each requirement separately.

A Relatedness

To understand the unique setting of this particular case, it may be helpful to engage in a brief overview of the development of the law as it pertains to the exercise of personal jurisdiction in this District over out-of-state and foreign hotels.

Under the Massachusetts long-arm statute,

a court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person's ... transacting any business in this Commonwealth.

MASS.GEN.LAWS ANN. 223A, § 3(a) (1985). In this circuit, reliance on this Massachusetts statute originally proved of little value to Massachusetts residents injured while staying at out-of-state hotels. While plaintiffs could frequently prove various contacts by the defendants with Massachusetts which satisfied the "transacting any business" requirement, these cases invariably foundered on the statutory requirement that the cause of action must be one "arising from" the transaction of business in Massachusetts. See Crocker v. Hilton Int'l Barbados, Ltd., 976 F.2d 797, 799 (1st Cir.1992); Fournier v. Best Western Treasure Island...